Between 2003 and 2007, Virginia Thomas, a longtime conservative activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled “none” where “spousal noninvestment income” would be disclosed. [...]

In his 2009 disclosure, Justice Thomas also reported spousal income as “none.” Common Cause contends that Liberty Central paid Virginia Thomas an unknown salary that year.

Wonder if he’ll disclose her 2010 income?

Of course Thomas is famously an advocate of zero transparency when it comes to campaign contributions, so it’s not like this is necessarily surprising. Still, what could happen to Thomas for these very obvious violations? Would you be surprised if I told you absolutely nothing?

And not only will nothing happen to him, but, well, you’ll see…

But Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said such an infraction was unlikely to result in a penalty. Although unfamiliar with the complaint about Thomas’ forms, Lubet said failure to disclose spousal income “is not a crime of any sort, but there is a potential civil penalty” for failing to follow the rules. He added: “I am not aware of a single case of a judge being penalized simply for this.”

The Supreme Court is “the only judicial body in the country that is not governed by a set of judicial ethical rules,” Gillers said.

So let’s get this straight…the highest court in the land with the most at stake doesn’t have any code of ethics? Talk about unfettered and unchecked power. We seriously need to reform the SCOTUS. No more lifetime appointments. Sure, maybe lifetime appointments made sense back in 1776 when the life expectancy was 35, but not anymore. It doesn’t make any sense.

“It has come to my attention that information regarding my spouse’s employment required in Part III B of my financial disclosure report was inadvertently omitted due to a misunderstanding of the filing instructions,” Thomas wrote in a letter to the committee that handles the reports.

I call shenanigans. Especially when you consider this…

None of Thomas’ forms, covering activities through Dec. 31, 2009, mention his wife’s work at Liberty Central, a conservative political education group she co-founded in January 2009 in part to energize Tea Party activists.

But the group did not officially launch until May 2010, which will only be covered during in the next disclosure period.

I’ve never read much that makes me think Thomas is a particularly talented legal mind, and this makes me think less of him.

Judges should follow the rules set before them even when those rules conflict with some personal principle. Or find other work. To do otherwise seems particularly hypocritical for a judge whose raison d’etre involves the rule of law.

As more details come out, I’ll make any judgments based on where the facts fit on the scale that has “just didn’t follow the rules” at one end and “concealed a legitimate conflict of interest” on the other end.

The point of disclosure is to avoid conflict. If a legitimate conflict is unearthed, anyone sensible would look serious askance at that. If not, and the actions aren’t remotely criminal, then I’m not as worried, but still not willing to say “nothing to see here.”

Unless someone can come up with a compelling defense of Thomas that involves something better than, say, comparing his actions to other folks who hold positions of similar trust and rectitude.

Read between the lines. What gleams more brightly than anything else in this story is what is not here: a single case where the accusation matters. I shall explain.

The only valid basis for the disclosure rules, it seems to me, is to avoid bias. Even common cause admits that, telling the LAT that “[w]ithout disclosure, the public and litigants appearing before the court do not have adequate information to assess potential conflicts of interest, and disclosure is needed to promote the public’s interest in open, honest and accountable government.”

Accordingly, without a showing of impropriety—that Thomas improperly participated in a case where disclosure would reasonably have resulted in a recusal motion—my answer must be that I don’t care. Common Cause has all the incentive in the world to produce examples of cases, which ought to be easy if they exist, where the ommission produced not potential but actual conflicts of interest. That was the point, after all; they said so. And yet they fail to identify a single case. Of course neither LAT nor CC admit it in so many words, but the implication is absolutely crystal clear: Thomas’ failure to disclose has had no impact whatsoever on any case. If it had, they would be waving that case like the proverbial bloody rag.

Unable to claim actual harm, they are reduced to making the point in the abstract, complaining that it should have been disclosed and that it could have resulted in bias. Indeed, it should, and it could—but it didn’t. And that’s the hidden headline here. Read between the lines. This is a gotcha piece with no real significance at all.

As always, Simon, you overstate your case when you lack a complete defense. Can your opinion be summarized as “He is clearly in the wrong but there is nothing to see here?” If so, please explain why his clear failure is of no real significance.

As you explicitly concede, Thomas should have disclosed the information that his job requires him to disclose. That he is a Supreme Court justice makes his failure to do so more troubling than average. A child could understand that.

Since you have admitted that he should have disclosed this information, and have mounted no defense for that failure, can we all presume that there really is no good defense?

Why shouldn’t judges be expected to follow the rules placed before them, when the very nature of their job is to enforce requirements that everyone else follow the rules placed before them?

Isn’t the job of Supreme Court justice the worst possible position from which to claim that one gets to behave by their own set of rules and ignore the ones that they are supposed to follow?

KK, there’s no real significance because the people with the most incentive to find any significance failed to dig up anything of real significance. CC cites not a single case in which this made a difference. That doesn’t make it okay, but it makes it boring. It means that the “scandal” is empty. Hypothetical. Potential. There’s just nothing of substance here—a partisan group taking a shot at a justice it doesn’t like. We’ve already seen that the left treats recusal motions as a tool to stack the deck; sometimes it works (Asshole v. Elk Grove), sometimes it doesn’t (Cheney and Boumedienne), but the pattern is clear. CC went on a fishing trip, and having found nothing of any real significance, they’re milking it for whatever minor scandal they can extract. What are we left with? Thomas should have (or may not have needed to; I haven’t read the relevant disclosure requirements and I bet you haven’t either) disclosed his wife’s income but it made no difference to anything. As scandals go, it’s weak.

Meanwhile, at risk of going down the tu quoque road, it’s not true that disclosure promotes recusal. Lower court judges labor under much stricter recusal rules (perhaps reflecting the lesser practical significance of their recusal, see Cheney v. U.S. Dist. Ct., 541 U.S. 913, 915-16 (2004) (Scalia, J., in chambers)), yet it did not seem to occur to Judge Reinhardt to recuse himself from the proposition 8 case despite his wife’s fully-disclosed involvement with the ACLU. Where was the hue and cry over that?

What we have here, then, is an accusation of failure to comply with a rule that doesn’t actually do what it’s supposed to do and which wouldn’t have made any difference if it had been followed. I’m not defending Thomas. If he should have disclosed, he should have disclosed. My point is how boringly trite it is to see yet another faux fit of the vapors over the left’s longstanding bête noir.

Elgee, sure it has. Appeals are rejected all the time because the appellant failed to show prejudice even if there was a violation of the law. IIRC, the Supreme Court handed down two such cases this week; Hudson v. Michigan and Herring v. US are other recent examples that jump readily to mind. Inability to show harm also forecloses civil litigation, generally speaking; compare Lujan v. DOW with Mass. v. EPA. The notion that harm is required to get excited about something is hardly ad hoc.

To back up to Justin’s post, I’m not necessarily opposed to rethinking life tenure, but it’s a problem because it requires a Constitutional amendment. I have often recited my threshold standard for considering Constitutional amendments: Reformers must identify clear and compelling problems with current practice that cannot be resolved with sub-constitutional action, and link them to a congruent and proportional solution that offers substantial improvement on current practice while being unlikely to generate unforeseen consequences. This requires extraordinary delicacy, and as I’ve repeatedly said here and elsewhere (e.g. here), I truly doubt that the relevant actors have the necessary skill in the current generation. Nor am I convinced that the problem is so pressing as to demand amendment. Reformers thus have a real uphill task to get me on board.

Simon, let’s winnow down to the core of your argument, so that we don’t get distracted by irrelevant bits:

That doesn’t make it okay, but it makes it boring.

Barring additional evidence to the contrary, you concede that he was wrong. Unless for some reason it was optional to fill out the disclosure forms truthfully.

Then you follow your concession with spin. We should be bored by this, since there’s no criminal wrongdoing. “Only” Thomas’s failure to follow the rules placed before him. Let’s notice that you’ve avoided answering the cogent questions I asked before:

• Why shouldn’t judges be expected to follow the rules placed before them, when the very nature of their job is to insist that everyone else follow the rules placed before them?

• Isn’t the job of Supreme Court justice the worst possible position from which to claim that one gets to behave by their own set of rules and ignore the ones that they are supposed to follow?

Simon, let’s winnow down to the core of your argument, so that we don’t get distracted by irrelevant bits:

That doesn’t make it okay, but it makes it boring.

Barring additional evidence to the contrary, you concede that he was wrong. Unless for some reason it was optional to fill out the disclosure forms truthfully.

Then you follow your concession with spin. We should be bored by this, since there’s no criminal wrongdoing. “Only” Thomas’s failure to follow the rules placed before him. Let’s notice that you’ve avoided answering the cogent questions I asked before:

• Why shouldn’t judges be expected to follow the rules placed before them, when the very nature of their job is to insist that everyone else follow the rules placed before them?

• Isn’t the job of Supreme Court justice the worst possible position from which to claim that one gets to behave by their own set of rules and ignore the ones that they are supposed to follow?

Okay. The varying terms of elected officials was a deliberate feature of the Constitution. Sadly, the framers didn’t anticipate the shift to a “Citizens United” Corporatocracy where 99% of CongressCritters are paid shills.

House = 2 yrs
President = 4 yrs
Senate = 6 yrs
Scotus = Life

If you do away with lifetime appointment bans, what would you suggest?? Thirty years instead of Life?? Twenty years?? Ten?? In our current Corporate Klepto-Plutocracy, what difference will it ever make??

What about electing SCOTUS Judges instead of appointing them??

I used to think the TeaParty jihadists were just nuts looking for a cause. Now I’m beginning to think their calls for “Second Amendment Remedies” bloodshed may be ahead of the wave.

Awful, horrible idea. Judges are not politicians. Elections are inescapably political. The states that do it should stop and move to the federal model, as should the states that use the so-called (and mistitled) “merit selection” model. The federal model is optimal. Judges are appointed to life tenure because judges aren’t politicians. Encouraging them to think as if they are, to act as if they have a mandate from the people, is to fundamentally misconceive the judicial role.

The only reform that even makes it off the starting block is appointment for a single, non-renewable term. But how long? There’s the rub.

I find it interesting when people make claims like “the Framers didn’t anticipate Citizens United.” They did. They adopted the First Amendment, which requires precisely what Citizens United holds, for better or worse. The founding generation were perfectly familiar with legal persons such as corporations, and no one at that time would have thought twice about whether speakers lose the protection of the First Amendment simply because they used a corporate vehicle, which is what the case actually holds (not that corporations have free speech rights, as the caricature has it).

I’ve never read much that makes me think Thomas is a particularly talented legal mind, and this makes me think less of him.

Curious that you would preface your comment with this statement. I wonder, which of Thomas’ opinions have you read, and what about them leads you to conclude he doesn’t have a “particularly talented legal mind.”

Ascap says:

In our current Corporate Klepto-Plutocracy, what difference will it ever make??

I had to snicker at this silly liberal claptrap. Even more laughable, he follows it with:

What about electing SCOTUS Judges instead of appointing them??

So immediately after lamenting the “Corporate Klepto-Plutocracy” you suggest making SCOTUS Justices electable…which would require them to raise money. Well thought out.

I find it interesting when people make claims like “the Framers didn’t anticipate Citizens United.” They did. They adopted the First Amendment, which requires precisely what Citizens United holds, for better or worse. The founding generation were perfectly familiar with legal persons such as corporations, and no one at that time would have thought twice about whether speakers lose the protection of the First Amendment simply because they used a corporate vehicle, which is what the case actually holds (not that corporations have free speech rights, as the caricature has it).

Balderdash.

You correctly note that the framers “were perfectly familiar with legal persons such as corporations” and then suppose that these means Citizens United is the appropriate result, and yet the word “corporation” is no where in the Constitution. If they wanted to grant corporations rights as individuals, they could have easily dropped a sentence in there somwhere.

@til I’d be lying if I had said that I had done a comprehensive review of Thomas’s work. Which is why I didn’t say that, or imply it.

I do enjoy keeping up with the supreme court as a layperson. Always have, since I was a kid. Not in depth. But if there’s a major decision, I read about it more than the average person. An I always at least skim any report of a decision that see. Over time, I tend to develop some admiration for a justice if he or she says something smart even if I don’t remember what they said. For example, I recall Sandra Day O’Connor saying very insightful things on multiple occasions, but I don’t remember what she said now.

I keep up with big supreme court decisions by reading accounts in the news, and drilling down into opinions on a fairly random basis when something interests me. The rest of the time, my information is based on whatever quoted excerpts of the opinion and the dissent are given.

During Thomas’s time on the court, my perception is that Thomas hasn’t very often been the one who wrote the opinion or the dissent. On occasions where he has done so, and has been quoted, nothing he has ever said made me think he was a particularly sharp insightful guy. Also, the things that he has said have led me to believe that he has a very authoritarian personality, Rigid. I didn’t remember why I recalled that. So I looked around. Thomas was the only justice who thought that extending a search (for drugs) of a 13 year old girl at school to a strip search was overly invasive. That’s just an example of his authoritarian nature. And he was outvoted 8 to 1.

Note that my comment was not directed at his philosophy. It’s only my subjective impression of his accuity in comparison to some of the other judges.

Which of Thomas’ opinions have you read? Are there things about them that make you admire his accuity, as opposed to his philosophy? From what you’ve said previously, it’s quite clear that you admire conservative judicial philosophy. That shouldn’t stop you from being able to identify which conservative justices are the alpha dogs and which are the loyal pack.

Over time, I tend to develop some admiration for a justice if he or she says something smart even if I don’t remember what they said.

So basically what you’re saying is that you hold opinions of these judges, that you cannot justify, but I should rest assured that you have very good reason?

During Thomas’s time on the court, my perception is that Thomas hasn’t very often been the one who wrote the opinion or the dissent.

You can review a list of authored opinions, concurrences, and dissents here, by Justice. From a cursory review it’s clear that Thomas has not written more or less than, say, Justices Souter or Ginsberg. Furthermore, I’m sure you know, opinion authors are assigned.

Thomas was the only justice who thought that extending a search (for drugs) of a 13 year old girl at school to a strip search was overly invasive. That’s just an example of his authoritarian nature.

Actually, that’s not entirely accurate. Thomas thought the search was “reasonable.” And not reasonable as in “oh ya that makes sense to me,” but reasonable as in this fits within our past definitions of reasonable, and the majority is departing from that definition here. In other words, the majority narrowed the definition of reasonable in order to interfere with school administration. Thomas laments the idea of Justices meddling in school affairs, and has plenty of precedent for doing so. Some might characterize that as anti-authoritarian. Now, do I agree with his conclusion? I’m not sure. But to simply take his conclusion and use it to label him “authoritarian,” without apparently having read the opinion is, I’m sorry, juvenile and ignorant.

You have to understand that when Justices form these opinions, they do so with not just the facts at hand in mind, but also with the broader legal implications of their decisions. I think Thomas realizes here that the Court’s interference in this case can be used as a springboard for future courts to interfere with school adminstration – and possibly in a way that is not so virtuous.

Which of Thomas’ opinions have you read? Are there things about them that make you admire his accuity, as opposed to his philosophy? From what you’ve said previously, it’s quite clear that you admire conservative judicial philosophy.

See, I never passed judgment on Thomas’ accuity, so I don’t feel the need to sit here and defend my opinion of him. I will say that in the course of my legal studies I’ve read and discussed opinions from a wide array of Supreme Court Justices, Thomas included. He doesn’t particularly stand out to me as a legal giant like, say, Holmes or Brandeis or Cardozo. That said, I also think that the difference between a superior and a mediocre Supreme Court Justice is so minute as to be barely noticeable by an untrained legal mind. I suspect that most observers, yourself included, form their opinion of Justices from the commentary that they get from legal “experts” that they see on teevee and in the rest of the media.

Justice Thomas, whatever his merits as a legal scholar, has been viciously attacked and maligned since the day of his nomination – I think because of his judicial philosophy, the man he replaced, and yes, his race.

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